THE RESPONSE

Is executive order a game-changer?

Many, but not all, hail Obama edict on agency cooperation on chemicals

Written byREESE DUNKLIN and MATT JACOB | STAFF WRITERS

Posted Aug. 4, 2013

Barbara Boxer, chairwoman of the U.S. Senate's environment and public works committee, sat visibly frustrated in a June congressional hearing. She finally told the Environmental Protection Agency official that "lives are being lost" while the agency failed to better safeguard the fertilizer chemical that blew up West.

Weeks later, Boxer wrote to the nation's governors. She implored them to do what they could to improve the security of ammonium nitrate. Finally, the California Democrat turned to the White House. The results of her efforts became public last week when President Barack Obama issued an executive order directing the federal government to improve safety at chemical facilities.

U.S. Sen. Barbara Boxer, D-Calif., sent a letter to the nation's governors asking for improved safety measures in the storage of ammonium nitrate. (J. Scott Applewhite/The Associated Press)

"For me, it's a game-changer," Boxer said in an interview with The Dallas Morning News. "I saw the intransigence of some of the agencies. I saw them arguing and not committing. … We asked the president to help make sure this [type of disaster] never happens again."

Scholars and environmentalists said Obama's decision to involve himself in the long-stalled chemical safety issue is significant.

Thursday's executive order creates a series of deadlines that a team of Cabinet members and agency heads must meet for overhauling best safety practices, data-sharing and emergency response.

The first deadline comes in mid-September, when the team must develop a pilot program to determine best practices for agency collaboration. The final one is in late spring 2014, the due date for a report creating a unified federal approach for identifying and responding to risks at chemical facilities.

But experts were cautious about whether Obama's order could help break the political gridlock that, they say, has left communities like West vulnerable to disaster. They noted that continued deadly industrial accidents and terrorism fears hadn't prompted regulators to use existing powers or lawmakers to bring new legislation.

"Certainly we've seen efforts like this in the past that have not gone as far as one might hope," said Bob Bostick, former homeland security adviser to the EPA under President George W. Bush. "But the fact that the president has issued an executive order is a good first step. It suggests maybe the issue has been elevated a little higher in this administration."

Cooperation edict

The presidential order on chemical safety calls for improved coordination between state and local agencies, enhanced information-sharing, and updated policies, regulations and best practices. It establishes a working group of six Cabinet-level departments, co-chaired by the secretaries of Homeland Security and Labor and the Environmental Protection Agency administrator. The group faces a series of deadlines over the next nine months focused on:

Improved coordination: Part of the regulatory breakdown that became clear in the wake of West was the lack of interplay between state and local governments. The order calls for shoring up emergency-planning and response efforts to chemical events.

Information sharing: The working group has been tasked with devising ways to streamline facilities' data-collection efforts and make shareable across agencies.

Modernizing policies: Specifically mentioned in the order is the creation of legislative and regulatory proposals on the "safe and secure storage, handling and sale of ammonium nitrate."

Best practices: By bringing together various chemical safety stakeholders - from manufacturers to first responders - organizers hope to identify ways to reduce chemical risks and maximize publicly available information.

Targets one compound

The directive specifically targeted improvements in the storage and handling of ammonium nitrate, which has not been as regulated as other potentially hazardous materials. The chemical used in fertilizer is stable unless it is exposed to extreme heat, pressure or an external shock.

That's exactly what happened during the April 17 fire in West, investigators said. The West Fertilizer Co.'s supply of ammonium nitrate was stored in wooden bins in a warehouse with no sprinkler system. At least 15 people died from the explosion, and more than 300 others were injured. Large swaths of the Central Texas farming town were destroyed, and property damage was estimated to be at least $100 million.

The West blast exposed a patchwork of chemical oversight. Responsibilities are spread, in bits and pieces, among roughly 10 agencies at the federal and state levels. They often fail to share important information. In some cases, they even work against each other in bureaucratic turf battles.

Legislative fixes have failed in recent years, in part, because of business lobbying efforts. The chemical and manufacturing industry doubled its total lobbying spending to $55million during the decade ending in 2012, according to an analysis by the nonprofit group OpenSecrets.org. The agricultural services sector, which includes fertilizer makers and retailers, increased lobbying spending by about 50 percent over the same period to $35million last year.

Two leading industry groups, the American Chemistry Council and the Fertilizer Institute, said they supported the government's role in safety oversight. They also hoped "unnecessary regulatory duplication" would be eliminated.

"Any time the government is more efficient, in my mind, that's a plus for the regulated community," said Kathy Mathers, spokeswoman for the Fertilizer Institute, which represents about 175 organizations and companies.

Environmental scholar Robert Bullard said he hopes Obama's order will eventually result in action on "the things we all know need to happen in terms of safety and security at these facilities." In 1994, Bullard helped the Clinton administration write an executive order to address disproportionately adverse health effects on minorities.

Robert Bullard: "This executive order puts the issue back on the radar ..."

"While Congress really fiddles around and, in a sense, wastes time and energy and effort, communities on the fence line are really guinea pigs and at great risk and harm," said Bullard, now dean of Texas Southern University's public affairs school. "This executive order puts the issue back on the radar, back on the level of federal oversight. It gets these various players back in the room, talking, coordinating and getting things done."

'We need actions'

The president's order directs the working group to improve coordination among all the branches of federal government, as well as state and local agencies and first responders.

U.S. Rep. Bill Flores, R-Bryan, said he's not a supporter of presidential orders or the plan for the Chemical Facility Safety and Security Working Group, as the team of high-level staffers will be known.

"What the president laid out is the right thing to do, except for a working group," said Flores, whose district includes West. "It reminds me of committees. Committees go out, and they study things for a while. They produce a nice report, and nothing gets done. What we need are actions."

Flores said he would have summoned the agencies to the White House and exhorted them to work together and use existing enforcement powers. He said he did not think new laws were necessary to prevent another West-like disaster.

"At this point, it appears we have what we need," Flores said. "We just need the execution, if you will."

Boxer said she agreed that new laws were unnecessary.

But Obama's order was important, she said, because one congressional committee like hers or a sole Cabinet secretary lacked the power to bring changes in chemical safety. That's because so many agencies, reporting to different chains of command, have oversight roles. And they don't have to listen to each other, she said.

In 2002, for instance, the agency that investigates industrial accidents recommended that the EPA designate ammonium nitrate as a high-risk chemical that required a risk management plan.

The EPA didn't act.

"We just needed the president to step up to the plate because the jurisdiction is divided into many parts and pieces," Boxer said in the interview Friday. "Only he can, through the actions he took, bring all of those together."

Enough information

Environmental experts said they wished the executive order had been more forceful, and they wondered whether it would have any influence beyond the federal level. State regulators, local officials and emergency responders also have a role in safeguarding communities from chemical incidents, they said.

Neil Carman, a former Texas environmental quality investigator who now works at the Sierra Club, said the White House's involvement "shows how important chemical safety is in the United States." But, he said, the order's call for a working group is "just studying the problem again."

"It's a step in the right direction, but basically it's back to step one," he said. "I think they should've done it much more quickly. We've already got enough information to take action."

Boxer said, based on her conversations with the White House, that one action may be forthcoming. The EPA later this month is expected to issue an alert on ammonium nitrate's hazards, its first since 1997. Such alerts, while not a regulation, advise industry and first responders on best handling and security practices.

Boxer added that she understands environmental advocates may have wanted the executive order to go further. But, she said, Obama stayed within the bounds of what he could do without prompting a court challenge.

"He can't say from here on out, 'It shall be done,'" Boxer said. "We think he went very far here. He did it in the right way."■